On Waiving the Jerusalem Embassy Act (or Not)

Editor's Note: The discussion of section 7(b) of the Jerusalem Embassy Act has been revised since original publication.

Tomorrow, the six-month waiver that President Donald Trump issued pursuant to the Jerusalem Embassy Act earlier this year will expire. If and when this happens, certain funding restrictions that are designed to force the United States to relocate its embassy in Israel from Tel Aviv to Jerusalem will snap back into effect. Until recently, Trump had been indicating his intent to extend the waiver for another six months in order to “give [his peace plan] a shot[.]” Yet in the last 24 hours, media outlets have reported that Israeli officials now expect Trump to instead let the waiver expire and announce that the U.S. Embassy is relocating to Jerusalem, possibly in a matter of days. Such reports may be accurate, or they may have been planted by individuals wishing to force the issue through the media. Regardless, the president’s intended path of action remains unknown.

Allowing the waiver to expire would represent a sharp break from past Democratic and Republican administrations, which--despite their own campaign promises and pressure from Congress--have resisted moving the U.S. Embassy to Jerusalem for fear doing so could alienate Arab allies, trigger protests in the Middle East, and damage the Israeli-Palestinian peace process, among other outcomes. Critics of this longstanding position, however, contend that these policy concerns are at best exaggerated and only serve to deprive Israel of the right to choose its own capital. Trump favored the latter view during his presidential campaign, repeatedly promising to relocate the embassy and appointing an advocate for such a move as U.S ambassador to Israel. And while Trump elected to continue the waiver in June to “maximize the chances of successfully negotiating a deal between Israel and the Palestinians,” his associated statement underscored that “the question is not if th[e] move happens, but only when.”

The U.S. Embassy and Jerusalem’s Status

The crux of the debate over the location of the U.S. Embassy in Israel is what it implies about the status of Jerusalem. When one state locates its embassy to another state in a particular territory, this generally indicates that the former state recognizes that territory as being within the latter state’s sovereignty. This recognition of sovereignty in turn brings with it a basket of rights and obligations under international law that the latter state may exercise in controlling that territory. For this reason, prior presidential administrations have been concerned that relocating the U.S. Embassy to Jerusalem would cause confusion regarding--if not trigger an actual change in--U.S. policy, which does not recognize Israel or any other state as having sovereignty over Jerusalem.

This U.S. policy position in turn has its origins in the early 20th century. Following World War I, the city of Jerusalem was placed under British control as part of the Mandate of Palestine, alongside the territory of modern-day Israel and Jordan as well as the West Bank and the Gaza Strip. Following British indications of its intent to withdraw in 1947, the U.N. General Assembly adopted a plan to partition the mandatory territory into separate Arab and Jewish states with Jerusalem as a corpus separatum under U.N. administration. Amidst increasing violence, however, this plan was never implemented. Instead, at the end of the British mandate in May 1948, Jewish leaders cited the U.N. partition plan in declaring the establishment of the state of Israel. Neighboring Arab states subsequently invaded, triggering the 1948 Arab-Israeli War. This war eventually resulted in an armistice line that divided Jerusalem in half, with Israeli forces in control of the western half and Jordanian forces in control of the eastern half. The latter included Jerusalem’s ancient Old City, which contains sites of immense religious importance to members of the Christian, Jewish, and Muslim faiths.

The United States described the evolution of its position on Jerusalem from this point forward in its 2014 merits brief in the matter of Zivotofsky v. Kerry, stating:

When Israel declared independence in 1948, President Truman immediately recognized the new state. But the United States did not recognize Israeli sovereignty over any part of Jerusalem. Nor did it recognize Jordanian sovereignty over the part of the city it controlled. That same year, the United Nations General Assembly, with United States support, passed a resolution stating that Jerusalem “should be accorded special and separate treatment from the rest of Palestine.” In 1949, when Israel announced an inaugural meeting of its Parliament in Jerusalem, the Truman Administration declined to send a representative because “the United States cannot support any arrangement which would purport to authorize the establishment of Israeli . . . sovereignty over parts of the Jerusalem area.”

In 1967, Israel established control over the entire city of Jerusalem. In subsequent United Nations proceedings, the United States stated that the “continuing policy of the United States Government” was that “the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.” The United States emphasized that it did not recognize any Israeli measures as “altering the status of Jerusalem” or “prejudging the final and permanent status of Jerusalem.”

In 1993, with the assistance of the United States, representatives of Israel and of the Palestinian people agreed that the status of Jerusalem is a core issue to be addressed bilaterally in permanent status negotiations. Subsequently, both President George W. Bush and President Obama sought to assist the parties in establishing negotiations on all outstanding issues, including Jerusalem’s status.

Within this “highly sensitive” and “potentially volatile” context, “U.S. Presidents have consistently endeavored to maintain a strict policy of not prejudging the Jerusalem status issue and thus not engaging in official actions that would recognize, or might be perceived as constituting recognition,” of Jerusalem as “a city located within the sovereign territory of Israel.” This policy is rooted in the Executive’s longstanding assessment that any such action would “discredit[] our facilitative role in promoting a negotiated settlement,” which would be “damaging to the cause of peace and . . .therefore not . . . in the interest of the United States.” That assessment affects a range of United States actions. In particular, the United States maintains its embassy in Tel Aviv.

For its part, Israel contends that its sovereignty extends over all of Jerusalem, which it identifies as its capital. Both the Palestinian Authority and many Arab states, meanwhile, maintain that all of Jerusalem should be subject to permanent status negotiations and that East Jerusalem should be the capital of any future Palestinian state. While positions within the international community vary, most foreign states have--like the United States--declined to take a position on who has sovereignty over Jerusalem and instead favor either negotiations to resolve this issue or international administration. Indeed, when Israel declared Jerusalem its “united and eternal capital” in 1980, it incurred a strong reaction from the U.N. Security Council, which successfully encouraged those countries with embassies in West Jerusalem to relocate them out of the city. Today, no foreign state has its embassy to Israel in Jerusalem, though several--including the United States--maintain separate consulates or other stand-alone facilities there.

The Jerusalem Embassy Act of 1995

While successive presidential administrations have expressed strong reservations about relocating the U.S. Embassy to Jerusalem, Congress has not. To the contrary, it has repeatedly adopted bipartisan resolutions expressing its support for such a move, often with overwhelming support. At times, it has also enacted legislation requiring the executive branch to take steps that would recognize Jerusalem as the capital of Israel.

The Jerusalem Embassy Act of 1995 is the most forceful expression of Congress’s desire that the U.S. embassy be moved to Jerusalem. The act declares that “Jerusalem should be recognized as the capital of the State of Israel” and that “the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.” To ensure this happens, it imposes sanctions on the executive branch if it fails to take such steps along an enumerated timeline. Specifically, section 3(b) of the act states:

Not more than 50 percent of the funds appropriated to the Department of State for fiscal year 1999 for ‘‘Acquisition and Maintenance of Buildings Abroad’’ may be obligated until the Secretary of State determines and reports to Congress that the United States Embassy in Jerusalem has officially opened.

If triggered, this would have cut the fiscal year 1999 funding for the upkeep and building of all U.S. embassies, consulates and other overseas State Department offices in half unless and until the United States opened an embassy in Jerusalem.

The Clinton administration, however, raised strong objections while this legislation was debated. From a policy perspective, this debate was happening shortly after the celebrated Taba Agreement wherein Israel and the Palestinians had just agreed on interim governance arrangements for the West Bank and Gaza. Hope was high that this momentum would lead to a lasting peace, and the Clinton administration argued that a “premature focus on Jerusalem” could “undermine negotiations and complicate the chances for peace[.]” The Clinton administration also maintained that section 3(b) of the act was unconstitutional, asserting in a memorandum by the Department of Justice’s Office of Legal Counsel that “the Constitution vests the President with the exclusive authority to conduct the Nation’s diplomatic relations with other States[,]” including recognition matters, and that “Congress cannot trammel the President’s constitutional authority to conduct the Nation’s foreign affairs and to recognize foreign governments by directing the relocation of an embassy” through limitations on funds. On both grounds, the Clinton administration threatened to veto.

In response to these concerns--and to avoid a presidential veto--Congress amended the act to incorporate a waiver provision, which became section 7. Section 7(a) states:

WAIVER AUTHORITY.—

(1) Beginning on October 1, 1998, the President may suspend the limitation set forth in section 3(b) for a period of six months if he determines and reports to Congress in advance that such suspension is necessary to protect the national security interests of the United States.

(2) The President may suspend such limitation for an additional six month period at the end of any period during which the suspension is in effect under this subsection if the President determines and reports to Congress in advance of the additional suspension that the additional suspension is necessary to protect the national security interests of the United States.

(3) A report under paragraph (1) or (2) shall include—

(A) a statement of the interests affected by the limitation that the President seeks to suspend; and

(B) a discussion of the manner in which the limitation affects the interests.

Section 7(b) in turn indicates that, where “the President exercises the authority” set forth in section 7(a), the restrictions imposed by section 3(b) “shall apply to funds appropriated in the following fiscal year[,]” unless there is a subsequent waiver for that year as well. The text is unclear, however, on whether a president “exercises” his waiver authority only when initially issuing a waiver or throughout the period in which a waiver applies.

The act’s legislative history shows that its sponsors had diverse views on the exact scope of this waiver provision. In debate, some co-sponsors of the act expressed their understanding that section 7 would allow the president to “waive the legislation if it would have dire consequences on the peace process” or “suspend th[e] limitation on State Department construction if he believes it is necessary to protect [U.S.] national security interests[.]” Others, however, asserted that section 7 should “be read and interpreted narrowly” as providing “flexibility . . . [only] in the event of an emergency or unforeseen change in circumstances” and not as permitting “the President to negate the legislation simply on the grounds that he disagrees with the policy.”

Despite this confusion--and certainarguments to the contrary--section 7 itself appears to have a broad scope. The executive branch frequently engages with statutory conditions, determinations, and waivers relating to national security, and generally enjoys substantial deference in making such determinations. Moreover, the plain language of section 7 does not--as many commenters, including supporters of the act, have implied--call on the president to certify that relocating the embassy would harm national security. Instead, it simply calls on the president to certify that the spending limitation on building and maintaining facilities abroad imposed by section 3(b) would itself harm national security. Particularly as such funds are used to maintain embassy security systems, this is a relatively easy requirement to satisfy.

Regardless of the ambiguity surrounding the scope of the waiver--or perhaps because of it--the revised Jerusalem Embassy Act passed through Congress with overwhelming support and became law shortly thereafter. The Clinton, Bush, and Obama administrations in turn made consistent use of section 7 to postpone the consequences of not relocating the embassy, a practice that the Trump administration continued through last June.

What Does it Mean if the Waiver Expires?

A decision to renew the waiver would continue this status quo for at least another six months. Nothing would prevent the Trump administration from voluntarily seeking to relocate the U.S. Embassy to Jerusalem, but it would not face any legal sanctions if it chose not to do so.

By contrast, if Trump allows the waiver to expire, this will reinstate the funding limitations provided for in section 3(b), reducing the funds that the Department of State may use for “Acquisition and Maintenance of Buildings Abroad” by half unless and until the secretary of state determines and reports to Congress that the U.S. Embassy in Jerusalem is open. Under a conservative reading of section 7(b) of the act, this limitation would apply to funds appropriated in the current fiscal year (i.e., fiscal year 2018, which began on Oct. 1, 2017). That said, section 7(b) could also be read to mean that this limitation should apply to funds appropriated in fiscal year 2019 which begins on Oct. 1, 2018.

Of course, the operative provisions of the Jerusalem Embassy Act are still subject to the same constitutional objections that the Office of Legal Counsel identified in 1995. If anything, the Supreme Court’s 2015 decision in Zivotofsky v. Kerry provides additional support for this position, as it recognized “[t]he President’s exclusive recognition power [as] encompass[ing] the authority to acknowledge, in a formal sense, the legitimacy of other states and governments, including their territorial bounds[,]” in striking down another federal law requiring the executive branch to identify Jerusalem as part of Israel in passports and other documentation. Indeed, the Trump administration has raised similar objections to other legislation that would limit the availability of funds for activities recognizing Russian sovereignty over Crimea, indicating that it would likely share the Clinton administration’s view that section 3(b) of the act is unconstitutional.

That said, the odds that the Trump administration would allow the waiver to lapse only to argue that the act is unconstitutional are extremely low. Use of the waiver has become widely accepted over the past several administrations and is the clearest mechanism for avoiding the imposition of section 3’s sanctions. In contrast, refusing to comply with the limitations in section 3(b) absent a waiver would undoubtedly be challenged in the courts, exposing both the Trump administration’s policies and the president’s exclusive recognition authority to unnecessary litigation risk. For this reason, if Trump fails to renew the waiver, it will most likely indicate that his administration intends to relocate the U.S. Embassy to Jerusalem. Further, it will most likely seek to do so relatively soon, before any of the sanctions imposed under section 3(b) have any substantial effect.

What to Watch For

Predicting the Trump administration’s next move regarding the U.S. Embassy in Israel is difficult. Trump’s own statements have indicated a tension between his commitment to relocating the embassy and his interest in making progress on Israeli-Palestinian peace negotiations. Moreover, his foreign policy instincts have proven unpredictable, unafraid of disruption, and particularly sensitive to domestic constituencies, all factors that may bear on his decision.

The worst case scenario would be if Trump makes a decision on short notice and announces the establishment of an embassy in Jerusalem without any diplomatic groundwork being laid. In this scenario, we are likely to see a high decibel reaction throughout the Arab world as both Arab leaders and their constituencies react to the United States’ surprise reversal on such a sensitive issue. Popular reactions to such a decision could result in widespread protests and even violence, and would likely put pressure on key Arab allies. Jordan, with its large Palestinian population, may face pressure to chill its relationship with Israel or face serious unrest. And Saudi Arabia may feel the need to back away from the close relationship it appears to be forging with the Trump Administration. At a minimum, Palestinians will almost certainly be outraged and any ongoing peace negotiations are likely to go on an extended hiatus. And while larger structural realities will likely force the Palestinians back into dialogue with the United States at some point, the intervening pause is likely to be a long one.

Of course, the Trump administration could also pursue an embassy move as part of a largerstrategy, most likely related to the Israeli-Palestinian peace plan that some of President Trump’s closest advisors are reportedly developing. In this scenario, any official announcement should be preceded by substantial diplomatic engagement both to prepare the ground among regional allies and build support for the proposal being put forward. Further, the move of the embassy will likely be accompanied by assurances and concessions intended to assuage Palestinian and Arab concerns, most likely relating to Palestinian claims to East Jerusalem, the recognition of Palestinian statehood, access to--and control of--holy sites in Jerusalem’s Old City, Israeli settlement activity in the West Bank, and certain other recurring issues. Substantial foreign assistance to the Palestinians could also help soften the blow. Combined with advance diplomatic coordination, these efforts may allow the United States to preserve its relationships with its Arab allies and tamp down the worst consequences described above. That said, it is unlikely to avoid all of them, and the prospects of success for any particular package are difficult to gauge.

Finally, Trump may once again exercise his waiver authority and decline to announce any change in the U.S. Embassy’s location. If this occurs, it is likely a sign that someone has persuaded the president that progress on the Israeli-Palestinian dispute is a real possibility and that sudden changes could harm its prospects or have other regional ramifications. These efforts to persuade Trump may work now, but are likely to face challenges when any resulting Israeli-Palestinian negotiations inevitably drag on or stall. Absent clear signs of progress, one can imagine Trump losing patience and wanting to act. And at some point--if not now, then in six, 12, or 18 months--he just might.

Scott R. Anderson is a David M. Rubenstein fellow in Governance Studies at the Brookings Institution. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.

Yishai Schwartz is a third-year student at Yale Law School. Previously, he was an associate editor at Lawfare and a reporter-researcher for The New Republic. He holds a BA from Yale in philosophy and religious studies.